Senate Dems sue to block Whitaker from serving as attorney general

Senate Democrats filed a lawsuit Monday challenging President TrumpDonald John TrumpTrump second-term plans remain a mystery to GOP Trump to hold outdoor rally in New Hampshire on Saturday Eighty-eight years of debt pieties MORE’s decision to name Matthew Whitaker acting attorney general.  

The lawsuit brought by Sens. Richard Blumenthal (D-Conn.), Sheldon WhitehouseSheldon WhitehouseDemocrat asks Barr to preserve any records tied to environmental hacking probe Democrats warn Biden against releasing SCOTUS list Key Democrat accuses Labor head of 'misleading' testimony on jobless benefits MORE (D-R.I.) and Mazie HironoMazie Keiko HironoIf only woke protesters knew how close they were to meaningful police reform Hillicon Valley: Facebook takes down 'boogaloo' network after pressure | Election security measure pulled from Senate bill | FCC officially designating Huawei, ZTE as threats Senate Democrats call on Facebook to crack down on white supremacists MORE (D-Hawaii) in the U.S. District Court for the District of Columbia marks the latest challenge in what’s been a flurry of litigation fighting the interim appointment.

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The Democrats — all member of the Senate Judiciary Committee — argue in the 17-page complaint that Whitaker’s appointment violated the appointments clause of the constitution, which requires principal federal officers be appointed only with the Senate’s advice and consent.

Trump named Whitaker to the acting role earlier this month after former Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsSupreme Court blocks order that relaxed voting restrictions in Alabama Justice Dept. considering replacing outgoing US attorney in Brooklyn with Barr deputy: report Tuberville campaign bus catches fire in Alabama MORE submitted his resignation at the president’s request. Whitaker had been Sessions’s chief of staff, a role that does not require Senate confirmation.

“The U.S. Senate has not consented to Mr. Whitaker serving in any office within the federal government, let alone the highest office of the [Department of Justice],” the Democrats said.

“Indeed, before deciding whether to give their consent to Mr. Whitaker serving in such a role, Plaintiffs and other members of the Senate would have the opportunity to consider his espoused legal views, his affiliation with a company that is under criminal investigation for defrauding consumers, and his public comments criticizing and proposing to curtail ongoing DOJ investigations that implicate the President.”

Maryland was first to challenge the appointment in an existing lawsuit to protect provisions of the Affordable Care Act that cover people with pre-existing conditions.

On Wednesday, attorneys in an immigration case before the 2nd Circuit Court of Appeals asked the court to issue a temporary order that to block the government from moving forward in the case with Whitaker serving as acting attorney general.

And, late Friday, attorneys in a gun rights case pending before the Supreme Court asked the justices to issue an order that name Deputy Attorney General Rod Rosenstein to the position instead.

After Democrats said last week they were considering bringing the lawsuit forward, legal scholars questioned whether it would survive in court. Some law professors questioned if Democrats alone have the required injury to bring the lawsuit forward.

Stephen Vladeck, a law professor at the University of Texas School of Law, said then that the Senate as an institution has to be the one to assert they were injured by Trump’s decision to appoint Whitaker.

Others, meanwhile, argued government institutions can’t sue other government institutions.

In their lawsuit, Blumenthal, Hirono and Whitehouse argue Trump unlawfully denied them their right, as sitting U.S. senators, to vote on whether to consent to Whitaker’s appointment to that role. 

“Unlawfully denying legislators their right to cast an effective vote robs them of one of their core powers and responsibilities,” they said. 

Complete vote nullification, they said, is clearly a type of an institutional injury that's sufficient to give them standing to sue.

Updated at 11:22 a.m.